Gujarat High Court
Kansal Tex-O-Tube Pvt. Ltd vs The Commissioner Of Central Exise & ... on 14 August, 2024
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/TAX APPEAL NO. 624 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA Sd/-
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
KANSAL TEX-O-TUBE PVT. LTD.
Versus
THE COMMISSIONER OF CENTRAL EXISE & CUSTOMS, SURAT-I
==========================================================
Appearance:
MR SUDHANSHU BISSA WITH MR PARESH M DAVE(260) for the
Appellant(s) No. 1
for the Opponent(s) No. 1
MR CB GUPTA(1685) for the Opponent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 14/08/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) Page 1 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined
1. Heard learned advocate Mr.Sudhanshu Bissa with learned advocate Mr.Paresh M.Dave for the appellant and learned advocate Mr.C.B.Gupta for the respondent no.1.
2. This Tax Appeal is filed under Section 130 of the Customs Act, 1962 arising out of the order dated 18.10.2006 passed by the Custom Excise and Service Tax Tribunal Ahmedabad (for short "CESTAT") in Appeal no.C/377 of 2002. This Court by order 07.09.2007 Admitted the Appeal on the following questions:
"Whether the order of the Appellate Tribunal demanding Customs duties from the appellant on yarns seized from Jay Krishna Sizers and Carewell Rayons Pvt.Ltd. and imposing penalty on the appellant is correct and legal in the facts of this case?"Page 2 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024
NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined
3. The brief facts giving rise to this appeal are that appellant is a 100% expert oriented undertaking (for short 'EOU') was engaged in business of manufacturing twisted yarns and polyester filament yarns (hereinafter referred to as "PFY"). 3.1. The appellant was allowed to import PFY free of duty being 100% EOU for utilizing such inputs in or in relation to the manufacture of permitted goods meant for exports.
3.2. The appellant was also permitted to deliver imported inputs to other EOUs for enabling them to manufacture goods meant for exports from the imported inputs. 3.3. The Officers of the Directorate Page 3 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined General of Anti Evasion conducted enquiry at the premises of the appellant on 30.11.1999 and verified the stocks of materials and finished goods lying in the factory as well as statutory records maintained by the appellant. 3.4. During the course of enquiry the officers also visited premises of parties namely M/S. Jay Krishna Sizers and M/S. Carewell Rayons Pvt. Ltd. and seized 1800 kgs and 4842 kgs of PFY at the respective premises of the above said concerns on the ground that no evidence showing payment of duties on imported PFY was produced by the two parties.
3.5. During the course of the investigation, statements of various Page 4 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined persons including Director of appellant Company and representatives of both the parties were recorded under the provisions of Customs Act, 1962 (hereinafter referred to as Act, 1962).
3.6. A show-cause notice dated 25.05.2000 was issued upon the appellant Company as to why custom duty of Rs.1,36,030/- on the goods seized at the premises of M/S. Jay Krishna Sizers and custom duties of Rs.3,64,559/- of the goods seized on the premises of M/S. Carewell Rayons Pvt. Ltd. the should not be recovered from the appellant company as it was alleged that the appellant company clandestinely removed the PFY by selling the goods to the said two concerns.
3.7. A show-cause notice was also issued Page 5 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined with regard to the confiscation of the seized goods.
3.8. During the course of the investigation the goods seized from the both the concerns were permitted to be provisionally released on condition of providing bond and bank guarantee of 25% of the amount of the bond.
3.9. The Commissioner of Customs after considering the defence and the replies filed by the appellant and other co- noticees passed an order-in-original dated 08.03.2002 by confiscating the goods under Section 111(J) of the Act, 1962 seized from both the concerns and as the goods were permitted to be provisionally released the bank guarantee furnished was ordered to be appropriated. The duty of Page 6 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined Rs.1,36,030/- and Rs.3,64,559/- was also held to be payable by the appellant in addition to the penalty of Rs.1,00,000/-. 3.10. The Commissioner Central Excise and Customs also imposed penalty upon the co- noticees. The appellant being aggrieved along with the Director preferred an appeal before the CESTAT. The CESTAT after considering the facts of the case as well as findings arrived at by the Adjudicating Authority upheld the same by observing as under:
"We have heard both sides. The perusal of the records shows that the 100% EOU imported PFY without payment of duty. They were, therefore, required to maintain proper accounts for receipt, issue and consumption of the same in their factory. Evidence on Page 7 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined record shows that they clandestinely removed the goods received by them duty free under Notification No.59/98 for manufacture of export goods by diverting the same in connivance with the brokers and their buyers and obtained sale proceeds in cash. Such diversion clearly amounts to violation of the provisions of the Notification. Therefore, duty not paid at the time of imports becomes recoverable from them. The appellants have not been able to rebut the charge and finding of diversion which is clearly based upon statement of the Director of the 100% EOU. The only argument raised before us that the 100% EOU was not the importer and therefore, could not be held liable to duty, and that duty demand, if at all, could be raised only against M/s. Jay Krishna Sizers and M/s. Carewell Page 8 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined Rayons Pvt.Ltd. who purchased imported raw materials and to whom provisional release of the goods was allowed, cannot be accepted for the reason that the Director of the 100% EOU had admitted that the EOU had imported PFY duty free and no document has been produced to show that the goods were imported by some one else, and the option to redeem the goods seized from the premises of M/s. Jay Krishna Sizers and M/s. Carewell Rayons Pvt.Ltd. has been given to 100% EOU."
3.11. Being aggrieved, the appellant has filed this appeal proposing the two questions of law, out of which, the question of law referred to here in above was considered for admission of the appeal.
Page 9 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024
NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined
4. Learned advocate Mr.Sudhanshu Bissa for the appellant submitted that the Tribunal has committed an error by holding that the appellant was importer and owner of the goods because the option to redeem the goods seized from the premises of M/S.Jay Krishna Sizers and M/S. Carewell Rayons Pvt. Ltd. i.e. 100% EOU was given to the appellant. It was pointed out that the goods were provisionally released and the same was handed over to both the concerns under Rule 206 of the Central Excise Rules, 1944, which provides that anything seized by a Central Excise Officer may, pending the order of the Adjudicating Central Excise Officer, be released to the owner on taking a bond from him in the proper form. It was therefore submitted that when the goods are now provisionally Page 10 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined released in favour of the both the concerns, they were the owners of the goods and therefore, no duty can be recovered from the appellant as there is no finding arrived at by the Adjudication Authority that the goods seized from M/S. Jay Krishna Sizers and M/S. Carewell Rayons Pvt. Ltd. were imported by the appellant. It was submitted that the Adjudication Authority and the Tribunal has merely relied upon the statement of the Director of the appellant without there being any other independent cogent evidence in support of such finding. 4.1. It was therefore submitted that the findings arrived at by the Adjudicating Authority and confirmed by the Tribunal is based on no evidence and the appellant could not be held to be liable to pay Page 11 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined customs duty on the goods which were seized from both the concerns and consequently, no penalty could have been imposed upon the appellant. 4.2. Learned advocate Mr.Sudhanshu Bissa for the appellant further submitted that in the statement of the Director of the appellant, it is not stated that the appellant imported the PFY which was found from the premises of M/S. Jay Krishna Sizers and M/S. Carewell Rayons Pvt. Ltd. Learned advocate invited the attention of the Court to the relevant observations of the Adjudicating Authority in the order- in-original to submit that the Director of the appellant only stated that the goods imported i.e. PFY was clandestinely removed by the group of companies of the appellant and not by the appellant company Page 12 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined and therefore, in absence of any evidence to show that the goods in questions were imported by the appellant, no duty and penalty could have been fastened upon the appellant.
4.3. It was further submitted that the appellant was never given an option to redeem the goods which were seized from M/ S. Jay Krishna Sizers and M/S. Carewell Rayons Pvt. Ltd. and the Tribunal has therefore, committed an error by observing that the option to redeem the goods was given to the appellant. It was therefore submitted that on both the counts, the order-in-original and the order of the Tribunal cannot be sustained and are liable to be quashed and set a side so far as the recovery of the customs duty and imposition of the penalty qua appellant is Page 13 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined concerned.
4.4. Learned advocate Mr.Sudhanshu Bissa for the appellant also referred to and relied upon the decision of the Hon'ble Kerala High Court in case of Commissioner of Customs, Kochi Vs. Nalin Choksey in Customs Appeal No.18 of 2009, decided on 03.04.2018, to submit that the appellant cannot be saddled with payment of duty as the goods have been provisionally released in favour of the two concerns from whom, the same were found. The Hon'ble Kerala High Court in the said case has observed as under:
"9 The liability on the subsequent purchaser would not at all be a consideration in interpreting Section 125 of the Act. As has been pointed out by the Learned Standing Page 14 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined Counsel, when there is a misdeclaration of value, the goods imported becomes prohibited goods, as has been defined under Section 2(33) of the Act, which includes violation of conditions subject to which the goods are permitted to be imported, when a misdeclaration has been made and for that reason short levy of duty, it attracts Section 111(m) and proceedings are initiated under the said provision for confiscation of goods as has been permitted under Section 111 of the Act. The provision for confiscation under Section 111 lists various contingencies in which such confiscation can be proceeded with and it includes Clauses (d), (m) and (o) which are applicable in the import of the subject vehicle. When confiscation is provided and the Commissioner takes proceedings against the said goods and effects such confiscation, then the goods Page 15 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined becomes the property of the State. A mitigation is provided insofar as the owner of the goods, from whom the goods are seized, to opt for redemption under Section 125. On payment of redemption fine imposed under sub-section (1) and short levy of duty under sub-section (2) the owner is entitled to get released the goods. Redemption fine also has to be restricted to the market value of the goods. The payment of duty is not a consequence of the levy under Section 28, but the option exercised under Section 125. The owner from whom the goods are seized does not have the liability to pay the duty, but the goods involved in the import are liable to be confiscated and to save distress on the goods, if the owner, opts to redeem it under Section 25, there is an obligation to pay the duty and fine imposed.Page 16 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024
NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined
10. In the present case, the redemption fine was imposed at Rs. 6,00,000/- and short levy of duty was collected at Rs. 17,92,847/- The subsequent bona fide purchaser may not have any liability to duty. However, by confiscation, the State gets the authority to recover the entire market value of the goods, which would definitely be more than the duty, if redemption is not made then the person from whose possession the goods are seized merely loses the property in goods and there could be no further levy of duty on the bona fide purchaser. The Department, despite such confiscation could proceed for recovery of duty too, but only from the importer."
5. On the other hand learned advocate Mr.C.B.Gupta supported the impugned orders passed by the Adjudicating Authority and the Tribunal.
Page 17 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024
NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined
6. Having heard the learned advocates for the respective parties and considering the concurrent findings of the fact recorded by the Adjudicating Authority as well as the Tribunal, it is not in dispute that the appellant company, which is part of the concerned group of company was involved in clandestine removal of imported PFY in the local market and as such there is a clear breach of Notification No.59 of 1998 for manufacture of export goods by diverting the same in connivance with the brokers and the buyers and to obtain the sale proceeds in cash. It would be therefore necessary to elaborate the findings given by the Adjudicating Authority while passing the order to recover the customs duty and imposing the penalty upon appellant as Page 18 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined under:
"43. In the SCN there is allegation that M/s Kansal Texo Tube Pvt.Ltd. (100% EQU) were involved in the clandestine removal of imported yarn which they had received duty free under Notification 59/98 dated 3.8.98 (as amended) for manufacture of export goods. They were involved in systematic evasion of duties by diverting the imported raw material in connivance with the brokers and buyers. They obtained the sale proceeds in cash and attempted to regularize the illegal transactions through fictitious sale bills. The Cheque payments made to the bogus firms were converted into cash with the help of brokers as admitted in their statements recorded under the Customs and Central Excise Law. Further, it is alleged that non- maintenance of records in their factory premises was not a co-Page 19 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024
NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined incident but it was a deliberate and well thought out plan to evade payment of duties. The variations in the stock reflected in the books seized from their office premises and the stock physically ascertained confirmed these facts. The cross verification of the physical characteristics of the imported yarn seized in the premises of M/s Jay Krishna Sizers and M/s Carewell Rayons P.Ltd. with the import documents pertaining to M/s Kansal Group of Companies revealed that these goods were initially imported by M/s M/s Kansal Texo Tube Pvt. Ltd. and instead of consuming the same in the manufacture of exports goods, they diverted it illegally for home consumption to above mentioned units.
45. It seem that the simultaneous searches were conducted in the office premises as well as in the factory premises of M/s Kansal Texo Tube Pvt.Ltd. The panchanama shows that Page 20 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined the records were not available in the factory premises for which no reason has been given by the director. Further as alleged in the SCN mentioned above that there was wide variation in the physical stock and recorded balance shown in statutory records. However, it is not forth coming from the records before me as to how much and why there was difference in the stock of the goods under seizure. On the contrary, the panchanama drawn at factory of the noticee unit merely narrates that the records were not available. Though the SCN speaks about variation in the stock but there are no details and reasons as to why the physical stock was not tallying. It is otherwise mentioned in para 7 of SCN that the records considered relevant to the investigation were seized under panchanama dated 30.11.99. This fact clearly shows that the unit maintained their statutory records, but it was kept in their office Page 21 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined premises.
48. As regards proposal for confiscation of 1800 kgs of FDY valued at Rs. 1,53,000/- under Section 111(j) of Customs Act, 1962 and/or erstwhile Rule 209(d) of Central Excise Rules, 1944, 1 note from the panchanama dated 30.11.99 that the same is typed one. Further the officers who visited M/s Jay Krishna Sizers, GIDC, Sachin on 30.11.99 itself and searched the premises of the said unit, recovered certain documents. The officers also found imported yarn manufactured by M/s Hualon for which Shri D.L.Boghra partner could not produce any valid purchase documents. The officers seized 1800 kgs of FDY- 150/48 Y having lot number 68722 valued at Rs. 1,53,000/- under panchanama dated 30.11.99 on the reasonable belief that the said yarn being offending goods cleared without payment of duty and without any documents was liable Page 22 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined for confiscation under the provisions of Central Excise Law. I have also perused the statement of Shri D.L. Boghra dated 30.11.99 and 24.5.2000 wherein he interalia stated that he was partner in M/s Jay Krishna and Proprietor of M/s Captain Products; that they purchased polyester filament yarn of 50/36, 60/36, 70/72, 75/36, 115/36, 150/36 and 150/48 from many companies through brokers; that they purchased PFY on adjustment bills through the broker and made payment by Cheque only; that they purchased 150/48 Y grade -II quality yarn weighing 1800 kgs under bill number 209 dated 24.11.99 and bill No. 196 dated 20.11.99 Issued by M/s Kamlani Enterprises; that description of PFY shown in these bills was 15/36 and 80/36 Polyester Yarn which did not match with the PFY found in their factory, that this was only because of adjustment of bills only; that the bills of M/s Kamlani Enterprises were adjustment bills for the PFY; that he Page 23 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined was satisfied with the method and contents of the panchanama dated 30.11.99. I have also perused his another statement dated 24.5.2000 wherein among other things he has stated that the imported PFY under seizure was supplied to them by M/s Kansal Group of Companies ie. M/s Kansal Texo Tube Pvt. Ltd. and others; that the payment in cash were made to Shri Rakesh Agarwal director of the M/s Kansal Group of Companies directly; that as regards the cheque payment made to M/s Kamlani Enterprises he stated that M/s Kamlani returned back the amount in cash to him.
51. From the above it is abundantly clear that the PFY under seizure was imported PFY illicitly supplied by M/ s Kansal Group of Companies ie. M/s Kansal Texo Tube Pvt. Ltd. and received by M/s Carewell Rayons Pvt.Ltd. without the cover of any valid statutory document and without Page 24 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined payment of Customs duty leviable thereon. M/s Carewell Rayons Pvt.Ltd. during the present adjudication proceedings have tried to establish that the said PFY under seizure was indigenous duly purchased by them under the cover of bills issued by Shri Ramnath H. Duggal. However, during the panchanama and in his both the statements Shri B.N. Bhagat authorised signatory of M/s Carewell Rayons Pvt. Ltd. had very categorically admitted that the said PFY was imported one and illicitly received/ purchased without any valid document and without payment of customs duty. Accordingly, their retraction during the proceedings is nothing but an after thought just to save themselves from the consequences which may result into confiscation of the goods and imposition of penalty. Accordingly I do not accept that plea and hold that the imported PFY weighing 4824 kgs valued at Rs. 4,10,040/ was liable to confiscation Page 25 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined under Section 111(j) of Customs Act, 1962. As the goods were released provisionally on execution of bond with Bank Guarantee of Rs.1,02,510/- and are not available for actual confiscation, an order for appropriation of adequate amount will be passed.
53. As discussed above the PFY seized from M/s Jay Krishna Sizers and M/s Carewell Rayons Pvt.Ltd. was imported PFY removed by M/s Kansal Texo Tube Pvt.Ltd. clandestinely without obtaining any permission from proper authority of Development Commissioner and/or from the Central Excise department and without payment of customs duty due thereon. Since M/s Kansal Texo Tube Pvt.Ltd were 100% EOU working under Chapter IX of Customs Act, 1962, they were supposed to use the imported PFY in the manufacture of their final product which were to be exported or disposed of otherwise in accordance with the Page 26 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined Exim Policy and relevant Notifications issued under Central Excise and Customs Act. However, the above said PFY was removed clandestinely by them in contravention of provisions of Section 71 of Customs Act, 1962. Accordingly I hold that the Customs duty of Rs. 1,36,030/- and Rs. 3,64,559/ leviable on the aforesaid seized imported PFY is recoverable under Section 72 read with Section 28 of Customs Act, 1962. The same will be due for recovery if the above mentioned duties have not been paid already after obtaining provisional release of the seized goods."
7. In view of the above concurrent findings recorded by the Commissioner, Central Excise And Customs which have been upheld by the Tribunal, in our opinion are not required to be interfered with in absence of anything contrary shown by the Page 27 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024 NEUTRAL CITATION C/TAXAP/624/2007 JUDGMENT DATED: 14/08/2024 undefined appellant from the records. We are therefore of the opinion that no question of law, much less any substantial questions of law arise from the impugned order of the Tribunal. The Appeal therefore is accordingly dismissed.
Sd/-
(BHARGAV D. KARIA, J) Sd/-
(NIRAL R. MEHTA,J) URIL RANA Page 28 of 28 Uploaded by URIL KRISHNAKUMAR RANA(HC01406) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 21:56:16 IST 2024